Legal Ethics Opinion No. 1365
Conflict of Interests--Domestic Relations Practice--Attorney as
Witness--Zealous Representation: Representing Client in Custody Proceeding; Client's Spouse Previously Treated at Clinic Where
Attorney Served as Counselor
You have advised that an attorney represented Client A on
numerous matters from 1960 until the latter part of 1978 at which
time the attorney turned in his license to practice law which was
later revoked in 1980. You have stated that during this time in
which the attorney's license was revoked, the attorney held
several jobs, one of which was an addictions counselor and
director of addiction programs at a hospital. During the last
six months of the former attorney's employment at the hospital as
counselor, A's spouse, B, was admitted to the hospital. You
indicate that B had her own counselor and she was not the former
attorney's patient, nor did former attorney participate in B's
family sessions or individual sessions while at the hospital.
Finally, you have stated that A and B were subsequently divorced
and B obtained custody of their child. In the meantime, former
attorney's license to practice law is reinstated in January of
1988. Attorney is then approached by A to represent him again on
several matters including the divorce proceeding to seek custody
and visitation rights with infant son.
You wish to know whether, under the facts as stated above, the
attorney is precluded from representing A in the divorce and
custody proceeding against B because of attorney's involvement as
a director of a chemical dependency program of a facility during
which time B was also a patient.
The appropriate and controlling Disciplinary Rules relative to
your inquiry are DR 5-101(A) and DR 5-102. Disciplinary Rule
5-101(A) provides that a lawyer shall not accept employment if
the exercise of his professional judgment on behalf of his client
may be affected by his own financial,
business, property, or personal interests, except with the
consent of his client after full and adequate disclosure under
the circumstances.
Disciplinary Rules 5-102(A) and (B) provide that if a lawyer
learns or it is obvious that he or a lawyer in this firm ought to
be called as a witness on behalf of his client in contemplated or
pending litigation, he shall withdraw from the conduct of the
trial and his firm, if any, shall not continue representation in
the trial unless (1) the testimony will relate solely to an
uncontested matter and there is no reason to believe that
substantial evidence will be offered in opposition to the
testimony; (2) the testimony will relate solely to the nature and
value of legal services rendered in the case, and (3) as to any
matter, if refusal would work a substantial hardship on the
client because of the distinctive value of the lawyer or his firm
in the particular case. See DR 5-101(B) and DR 5-102(A).
However, if an attorney learns or it is obvious that he or a
lawyer in his firm may be called as a witness other than on
behalf of the client, he may continue the representation until it
is apparent that his testimony is or may be prejudicial to his
client [DR 5-102(B)].
The committee believes that while the attorney was a counselor
and director of a chemical dependency program at a facility to
which Client A's spouse, B, was admitted, he would not have been
acting in his professional capacity as attorney since his license
had been revoked. The committee sees no possibility of the
establishment of an attorney/client relationship since, during
the period his revocation, the former attorney/counselor would
have been prohibited from counseling another non-lawyer in
matters involving the application of legal principles to facts or
purposes or desires since such activity would have been construed
as the unauthorized practice of law.
Thus, the committee opines that, if the attorney has ethical
duties which arise from the mandates of another profession,
including the guarding of communications or information gained
from the patients he counseled individually or in the chemical
dependency program he supervised, the attorney/counselor must
determine whether those former responsibilities will affect the
exercise of his professional judgment as an attorney on behalf of
his client. The committee cautions that, should the attorney be
encumbered from using information beneficial to his client as a
result of compliance with the mandates of another profession, the
attorney's ability to zealously represent his client as required
by Canon 7 and DR 7-l0l may be compromised. Nevertheless, the
committee is of the opinion that any violation of that other
profession's requirements may be improper and therefore violative
of DR l-l02(A)(3) and (4) which respectively preclude a lawyer
from committing a deliberately wrongful act or from engaging in
conduct involving dishonesty, fraud, deceit, or misrepresentation
when any such activity results in an adverse reflection on the
lawyer's fitness to practice law.
Furthermore, the committee is of the opinion that the attorney
should not assume the representation if it is likely that he
should testify on behalf of his client. Conversely, if he
anticipates or should know that he will be
called as a witness to testify on behalf of someone other that
his client,
ie., client's spouse, he may be required to withdraw from the
representation if it becomes apparent that his testimony is
prejudicial to his client. In either case, the committee
believes that the attorney should consider whether the client's
interests would best be served by his role as an advocate or as a
witness and where there is any doubt, the question should be
resolved in favor of the lawyer testifying and against his
becoming or continuing as an advocate. See: EC 5-9, EC 5-10.
Committee Opinion
July 31, 1990